Pulliam v. Com.

• Decision Date: 26 January 1923
• Citation: 197 Ky. 410,247 S.W. 366
• Parties: PULLIAM v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

247 S.W. 366

197 Ky. 410

PULLIAM v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 26, 1923

Appeal from Circuit Court, Daviess County.

Frank Pulliam was convicted of unlawful possession of intoxicating liquors, and he appeals. Affirmed.

Aud &amp Higdon and Gilbert Holbrook, all of Owensboro, for appellant.

Chas I. Dawson, Atty. Gen., Thos. B. McGregor, Asst. Atty. Gen Glover Cary, Commonwealth Atty., of Calhoun, and Wilbur K. Miller, Co. Atty., of Owensboro, for the Commonwealth.

SAMPSON C.J.

The warrant accuses appellant, Pulliam, of the offense of unlawfully having in his possession intoxicating liquors, and a trial resulted in a conviction; the punishment being fixed at a fine of $100 and confinement in the county jail for 30 days. Being displeased with this result, Pulliam appeals.

As grounds for a reversal of the judgment, appellant insists: (1) That the court erred in overruling his demurrer to the warrant; (2) in overruling defendant's motion for a peremptory instruction made both at the conclusion of the evidence for the commonwealth and at the conclusion of all the evidence; (3) in failing to instruct the jury on the whole law of the case; (4) in permitting the commonwealth to introduce incompetent, irrelevant, and immaterial evidence over the objection of appellant; and (5) the verdict is contrary to the law and evidence.

1. The warrant upon which appellant was tried, both in the justice's court and in the circuit court, when the case was appealed there, is in the usual form. While it does not negative the exceptions in the statute, it does allege that the possession of the liquor was unlawful, and that appellant obtained it in an unlawful manner, for the purpose and with the intention of using it in an unlawful manner. We have recently held, following a long line of cases--Pabst Brewing Co. v. Commonwealth, 107 S.W. 728, 32 Ky. Law Rep. 1011; Johnson v. Commonwealth, 197 Ky. 291, 246 S.W. 798--that a warrant in a case like this is not tested by the same strict rules of pleading which are generally applied to indictments originating in the circuit court. Following this rule, we must hold that the warrant sufficiently charged the offense of having intoxicating liquors in possession, and the trial court did not err in overruling the demurrer to it.

2. Appellant's motion for a directed verdict in his favor was properly overruled, because there was sufficient evidence, aside from the evidence given by the sheriff introduced by the commonwealth, not only to carry the case to the jury, but to sustain the verdict. This motion was urged, no doubt, upon the theory that the evidence had been obtained through a search made under an insufficient search warrant, and was therefore incompetent, and should have been excluded. Two or three witnesses testified that appellant, Pulliam, on a certain Sunday in last August, had at his home, and was using for beverage purposes, a small quantity of white whisky, which was intoxicating. This evidence was not obtained by means of a search. Appellant admitted the possession of the whisky, but on cross-examination of himself testified that, while he was at his barn some days previous to the day in question, a person found in a manger a bottle containing whisky and, picking it up, gave it to appellant, who received it, and carried it to his home, and placed it on the mantel; that afterwards he put some of this whisky in a camphor bottle and used the balance of it for beverage purposes, mixing it with water. If appellant received the whisky in the manner set forth in his evidence, it was unlawfully in his possession. There is, therefore, no conflict in the evidence on the subject of the unlawful possession. Nor is there any controversy about the fact that appellant had in his possession white whisky,...